Luisiana Dobrinescu , 22 Apr 2013

Supremul drept, suprema nedreptate: calitatea normei fiscale

If what was done in compliance with the law in force could be continuously damaged by the new law, any forecast would be impossible and the legal order itself would be threatened as the trust in the security of rights would decrease” (Prof. Mihail Eliescu, 1967).

In the last years, more and more tax disputes have been caused by the vagueness of the law, namely the constant changes into the rules of fiscal law which led to inconsistencies in the interpretation and implementation of the law in time.

In Romania, the compliance with the Constitution, its supremacy and the laws is mandatory”, according to article 1 paragraph 5 of the Fundamental Law. However, the compliance with the law implies knowing it, which means, in turn, to provide the common citizen with the access to the body of law.

The accessibility of the law mainly concerns making it public. Nevertheless, there is another meaning of the accessibility concept, namely the one which refers to the manner in which the contents of the legal enactments are received, i.e. their understanding.

In the contemporaneous Romanian taxation regulations are enacted today and their implementation is expected to occur starting with the following day. It is simply fiction to consider that such a period of time is reasonable for the subjects of law to become aware of the existence of the new law, to understand and to assimilate its consequences upon their conduct…

The legal rule has to be clear, intelligible, since the persons that it addresses to must not only be informed in advance about the consequences of their acts and facts, but also to understand their legal consequences. Otherwise, the principle according to which nobody can invoke the ignorance of the law may no longer be applicable, which would have serious consequences upon the security of social relationships and the existence of the society in general.

All these elements secure “the quality of law”, one of the fundamental rights set forth in the Convention on Human Rights.

Therefore, the supremacy of the law referred to in the above quoted article set forth in the Constitution of Romania should be deemed in the first place the responsibility of the legislator in securing the quality of the legislation that the citizen has to assume and comply with.

We excel in theory, declaring and rising the clearness and accessibility of the fiscal rule to the rank of principle:

The principle of certain taxation implies the elaboration of clear legal rules which should not give rise to arbitral interpretation, and the deadlines, the payment manner and the amounts to be paid should be accurately determined by each payer, being possible for them to follow and to understand their tax burden, as well as to determine the influence of their financial management decisions upon their tax burden” – according to article 3 of the Fiscal Code.

Unfortunately, nowadays in Romania, the danger comes right from the law: the taxpayers of good faith are overwhelmed by the volume of the fiscal legislation and by the poor quality of the legal rule.

Furthermore, looking deeper into this problem, the legislator refuses to include in the domestic legislation a principle as modern as necessary, according to which THE BENEFIT OF DOUBTFUL INTERPRETATION SHOULD BE GIVEN TO THE TAXPAYER. In concrete terms, this principle of interpretation would ensure that, in case the body of law offers ambiguous or multiple ways of interpreting the taxpayers’ rights and obligations, the authorities (either tax inspectors or judges) have the obligation to resort to the most favourable approach.

This would not be a favour, but a sign of correctness in the relationship between the taxpayer and the fiscal body. Such a principle would certainly enhance the respect of the tax payer for the state authority and would discipline the legislator.

The High Court of Cassation and Justice, pursuant to a decision rendered in 2012, made an already important step in the doctrinaire enforceability of this principle, mentioning that: “in the fiscal law the principle of interpretation in dubio contra fiscum operates, according to which the doubtful legal provisions are construed against the tax authorities, since in the period that was verified, the competent authority itself had an incorrect and inconsistent vision of such fiscal matters”.

At almost every change in the political regime, the representatives of the Ministry of Finance announced their intention to introduce this rule of interpretation of the fiscal rule.

For budgetary reasons and due to the lack of confidence in the quality of its own regulation, “in dubio contra fiscum” is still a desideratum. Until such responsibility is assumed, but in the presence of all other principles so nicely and not pragmatically regulated, we are all involved in “the supreme law, the supreme injustice”.

Article written by the attorney-at-law Luisiana Dobrinescu (photo), partner at the law firm DOBRINESCU DOBREV SCA